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Keep it clean and prove it redux: revised potable water regulations coming into force

On March 23, 2016, the Public Health Agency of Canada (“PHAC”) published the final version of the revised Potable Water on Board Trains, Vessels, Aircraft and Buses Regulations (the “Regulations”), replacing the existing 60-year-old regime governing the safety and quality of drinking water on federally regulated airplanes, trains, ships and buses. The Regulations comprise an important additional point of compliance in the transportation sector, and will come into force on September 23, 2016.

As we discussed in our May 2014 bulletin with respect to an earlier version of the Regulations (the “Initial Proposal”), the regime aims to enhance the safety of water on board conveyances through the introduction of routine testing and disinfection and flushing of potable water systems, as well as certain record-keeping requirements.

The key provisions of the Regulations include:

Flexible water sampling schedules dependent on the frequency of disinfection and flushing of potable water systems;

Record-keeping for each conveyance for at least a rolling 12-month duration; and

Foreign operators of conveyances that stop only once while in Canada to embark or disembark passengers are exempt from the above sampling and record-keeping provisions.

New sampling and record-keeping requirements

Under the Regulations, PHAC has put in place a variable schedule of water sampling for different types of conveyances that depends on how frequently the potable water system is disinfected and flushed. More frequent sampling is required if disinfection and flushing occurs less often, bringing the Regulations more generally in line with other regimes such as the Aircraft Drinking Water Rule that governs aircraft in the United States.

For aircraft in Canada, sampling is now required once every:

three months in the absence of routine disinfection,

six months if disinfection and flushing occurs every four months, or

twelve months if disinfection and flushing occurs every three months.

The Regulations also require that operators keep records for each conveyance to show when their water systems were repaired or disinfected and flushed, and that describe all samples, corrective measures and investigations. These records must be kept for 12 months from the date of occurrence and must be readily available for inspection for enforcement of the Regulations.

Trains are subject to a different schedule for sampling and disinfection and flushing, consistent with regulation adopted in the United States in 2015. A complete schedule for all types of conveyances is set out in the Regulations.

Foreign-operated conveyances exempt from key provisions

Operators of foreign conveyances are subject to some of the Regulations, but most will avoid the new sampling, record-keeping and reporting requirements. The Initial Proposal caused some concern among operators of foreign conveyances, which has been addressed after their participation in both rounds of consultations.

Operators of a conveyance travelling non-stop through Canada will not be subject to the Regulations. Additionally, operators of a foreign conveyance that stops only once while in Canada for passengers to embark or disembark will not be subject to the requirements for routine sampling, record keeping and assessment of an operator’s other conveyances in the case of a contamination.

Foreign conveyance operators that choose to provide water to passengers will still be subject to the balance of the regulatory requirements, including:

to provide passengers with water suitable for human consumption,

to take measures to prevent contamination,

to maintain on-board potable water systems, and

to take corrective measures as needed.

For most foreign conveyance operators subject to the requirements of their country of registration, the Regulations will not impose a significant new burden. However, even if they are exempt from the main additional requirements, operators of foreign conveyances will have to ensure their operational practices align with the framework of the Regulations. Foreign conveyances with more than one stop will also have to ensure compliance.

Compliance costs and next steps

PHAC’s enforcement efforts will focus on conveyances that pose a higher public health risk to passengers. Non-compliance is punishable by a maximum penalty of $5,000 or six months’ imprisonment, though we expect PHAC is more likely to focus on compliance than punishment.

PHAC estimates that the cumulative additional costs for all Canadian aircraft and train operators will total about $79,000 per year, roughly split between compliance costs and administrative costs. The additional costs of the Regulations to foreign conveyance operators should be lower, on the basis that foreign conveyances are excluded from key provisions and are likely subject to comparable requirements in their domestic jurisdiction.

Overall, the Regulations represent an important overhaul of a regulatory regime dating from 1954. Some operators, particularly airlines, have been working with the PHAC’s Travelling Public Program over the past several years to implement potable water management plans (“PWMPs”). The government expects that operators that have PWMPs in place should be well-positioned for compliance with the Regulations. However, even operators with PWMPs should review those plans to determine what, if any, changes will be required in order to ensure compliance with the Regulations’ new sampling and record-keeping requirements.

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